Democrats Seek to Protect Workers from Anti-Union Captive Audience Meetings

In at least parts of the country, unions are on the upswing.

After last year’s hot labor summer, The New Yorker in April declared President Biden “the most pro-labor president since F.D.R.,” underscoring the rising strength of unions in America.

Another sign of labor’s strength: This past July, Illinois became the latest state to prohibit employers from making their workers attend anti-union captive audience meetings.

On July 31, Illinois Gov. JB Pritzker (D), signed into law the Illinois Worker Freedom of Speech Act (SB 3649), the latest piece of state legislation to chip away at captive audience meetings, mandatory meetings employers hold to convey their position on religious, political or union matters. [See Labor & Employment Key Legal Developments Tracker (Current).]

“In Illinois, we respect the rights and dignity of workers,” Pritzker said in a social media post. “That’s why I signed the Worker Freedom of Speech Act into law.”

With his signature, Illinois joined Connecticut, Hawaii, Maine, Minnesota, New Jersey, New York, Oregon, Vermont and Washington in enacting bills prohibiting what employers can talk to their employees about in mandatory meetings. Generally, the bills prohibit employers from preaching to their workers about religion and politics—with most specifically barring employers from delivering anti-union messages. (Note that unlike the other states listed here, New Jersey does not prohibit captive audience meetings regarding unionization, but it does bar mandatory employee meetings on politics or religion.)

Lawyer Elias Kahn, senior product manager for labor and employment, tax, employee benefits and executive compensation, and federal government, on the Practical Guidance team for LexisNexis®, said states have mostly aimed the captive audience legislation towards protecting the labor movement.

Kahn said that “the 10 states with captive audience bills do have something in common: They’re all Blue states. Not surprisingly, there’s no Red states with these laws.”

Employers Long Allowed to Hold Captive Audience Meetings

For decades the National Labor Relations Board has permitted employers to hold captive audience meetings to explicitly persuade their employees to reject unionization. [See, e.g., Babcock & Wilcox Co., 77 N.L.R.B. 577 (May 13, 1948).] NLRB precedent has evolved to prohibit such meetings if they take place within 24 hours prior to a scheduled union election.

In April 2022, the Board’s general counsel, Jennifer Abruzzo, said she would try to get the Board to change its stance and declare all anti-union captive audience meetings coercive unfair labor practices. (See Politics In The Workplace: What Employers Need to Know.)

The Board, thus far, hasn’t done so, leaving state bills banning captive audience meetings vulnerable to legal challenges, which the National Law Review in June said bluntly “will continue...as infringements on employer First Amendment rights and/or preempted by the [National Labor Relations Act of 1935]. Those suits, however, face uncertain prospects.”

Other Potential State Captive Audience Laws

At the end of August, California lawmakers passed the California Worker Freedom from Employer Intimidation Act (SB 399), which would prohibit employers from retaliating against workers for refusing to attend meetings held “to communicate the employers’ opinion about religious or political matters.”

If the measure is signed by Gov. Gavin Newsom (D), California would become the largest state to enact a captive audience meeting ban.

Kahn said there are “likely to be more” bills introduced in the future to protect workers from anti-union messages in captive audience meetings, but he said those proposals are almost certain to appear in Democrat-dominated states.

States Cracking Down on Employer-Sponsored Meetings

At least 11 states have considered legislation this year prohibiting employers from retaliating against workers who fail to attend employer-sponsored meetings concerning religious or political matters, or banning so-called captive audience meetings altogether. Four of those states have enacted such measures.

Failed State Captive Audience Bills

According to LexisNexis® State Net® data, at least two bills concerning captive audience meetings failed this year. HB 802 in Maryland would have protected employees from captive audience meetings dealing with religious or political matters, but it died in committee.

Meanwhile, Colorado Gov. Jared Polis (D) vetoed HB 1260, which would have prohibited employers from disciplining workers for refusing to listen to certain employer messages.

“While I understand and agree with many of the sponsors’ commendable goals, and look forward to helping achieve them, I have significant concerns with the legislation’s broad and uncertain implications for employers and employees, as well as legal concerns,” Polis wrote in his veto message.

The message went on to say: “The bill’s definition of ‘political matters’ and ‘religious matters’ are so broad that they are unworkable and would result in unintended consequences for employers and employees alike. While the bill does include certain limited exceptions, I am concerned that even the exceptions will cause confusion and are insufficient in addressing employers’ day-to-day operational needs. Moreover, the breadth of the definitions could chill free speech.”

Future Battles over Captive Audience Legislation

Kahn noted that there are potential First Amendment freedom of speech and federal preemption legal arguments regarding state captive audience bills. He thought employers would emphasize these arguments in future challenges, especially given the federal government’s long history of generally allowing captive audience meetings regarding unionization.

The outcome of the November presidential election could further flame the fight over this issue. Kamala Harris’ selection in August of Minnesota Gov. Tim Walz (D) as her running mate pleased most labor unions. Almost immediately, unions applauded the pick, and NPR ran a story headlined, “4 reasons why labor unions love Tim Walz.”

With unions gathering strength, you can bet captive audience legislation—and the fight over it—is just beginning.

—By SNCJ Correspondent BRIAN JOSEPH

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